United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Plaintiff Balfour Beatty Infrastructure, Inc. (“Plaintiff” or “BBII”) has brought this action against Defendant Mayor and City Council of Baltimore (“Defendant” or “the City”), alleging breach of contract and breach of implied warranty, and seeking declaratory relief. Compl. at ¶¶ 177-245, ECF No. 1. The predecessor company of BBII, Fru-Con Construction, LLC, filed a similar action against the City, which was previously dismissed by this Court for lack of subject matter jurisdiction. See Fru-Con Const., LLC v. Mayor and City Council of Baltimore, No. RDB-14-0434, 2014 WL 6675625 (D. Md. Nov. 24, 2014). Currently pending before this Court is Defendant’s Motion to Dismiss this Complaint for Lack of Subject Matter Jurisdiction (ECF No. 9). BBII seeks to distinguish this case from the earlier case. The parties’ submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated herein, Defendant’s Motion to Dismiss (ECF No. 9) is GRANTED.
In ruling on a motion to dismiss, this Court accepts the factual allegations in the complaint as true and construes those facts in the light most favorable to the plaintiff. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). The facts of this case, construed in the Plaintiff’s favor, are as follows:
I. The S.C. 852R Contract
In November of 2009, Fru-Con Construction Corporation entered into a contract with Defendant Mayor and City Council of Baltimore (“Defendant” or “the City”) for the construction of the “SC 852R” Project, described as “Denitrification and Related Work for the Enhanced Nutrient Removal Facilities at Patapsco Wastewater Treatment Plant” (the “SC 852R Contract”). Compl. at ¶ 11, ECF No. 1; S.C. 852R, Compl. Ex. 1, ECF No. 1-1. Shortly thereafter, “the S.C. 852R Contract was assigned by agreement with the City from Fru-Con Construction Corporation to Fru-Con Construction, LLC.” Id. at ¶ 12. Subsequently, and with the City’s agreement, “Balfour Beatty Infrastructure, Inc. [(“Plaintiff” or “BBII”)] acquired all membership interests in Fru-Con Construction, LLC and became its sole member.” Id. at ¶ 13.
II. The S.C. 845R Contract
In July of 2011, Fru-Con Construction, LLC entered into a contract with the City for the construction of the “SC 845R” Project, described as “Nitrification Filters and Related [Work] for the Enhanced Nutrient Removal Facilities at the Patapsco Wastewater Treatment Plant” (the “SC 845R Contract”). Id. at ¶ 14; S.C. 845R, Compl. Ex. 2, ECF No. 1-2. Subsequently, Fru-Con Construction, LLC was fully merged into BBII. Id. at ¶ 15.
III. Dispute Resolution Provisions Governing Both Contracts
The Charter of Baltimore City, Article II, § 4(A)(g) provides the following:
. . . Baltimore City may provide or require that if there is a dispute between the parties involving $10, 000 or more over the terms of the contract or performance under the contract, the dispute is subject to a determination of questions of fact by an officer or official body of Baltimore City, subject to review on the record by a court of competent jurisdiction. (emphasis added).
The City’s Department of Public Works Specifications - Materials, Highway, Bridges, Utilities, and Incidental Structures 2006 (the “Green Book”) governs both contracts. Id. at ¶ 21. “To prevent disputes and litigation . . ., ” the Green Book provides “the exclusive procedures for the prosecution and resolution of all claims and disputes under the Contract.” Green Book, Compl. Ex. 3, p. 46, ECF No. 1-3. Consistent with the City Charter, the Green Book dictates the following procedure for “Claim[s] or Dispute[s]:”
Should the Contractor be of the opinion, at any time, that it is entitled to any additional Contract time and/or . . . damages . . . alleged to have been sustained, suffered or incurred by it in connection with the Project, the Contractor . . . within ten (10) Calendar Days thereafter shall file a written notice of the claim with the Engineer [‘duly authorized representative of the City of Baltimore’]. Within thirty (30) days . . . the Contractor shall file a written itemized statement of the factual and contractual details, amount, and supporting documents relating to each such claim . . . .” Id. at 15, 46-47 (emphasis added).
After a claim is filed with the Engineer, a multi-step administrative review process follows. Id. at 47-48. This process begins with initial review by the “Inspector assigned to the project, the Engineer, and the Division Head.” Id. Unfavorable decisions may then be appealed to the Bureau Head and ultimately to the Director of the applicable Department. Id. This process must be exhausted before a claim may be submitted for “review on the record by a court of competent jurisdiction.” Id. at 48. The Green Book states that “[t]he conditions of this section shall be held and taken to constitute a condition precedent to the right of the Contractor to prosecute a claim and recover additional time or cost notwithstanding any provisions of the Contract Documents . . . and shall also apply to all claims by the Contractor in any way arising out of or relating to the complete project or portions of the project, even though claims and or work involved may be regarded as “outside the ...